San Diego DUI Lawyer

DRIVING UNDER THE INFLUENCE (DUI)

Driving under the influence is a specialized and highly technical area of
the law. What used to be considered a glorified speeding ticket, now is one
of the most severely punished misdemeanors on the books. A person convicted
of a DUI is facing jail, fines, alcohol classes, driver's license
suspensions, points on the driver's license and higher insurance costs.

DMV

When a driver is arrested for a DUI, the Department of Motor Vehicles takes
an automatic administrative action on the driver's license. This is
completely separate from the court process. A driver only has 10 days from
the day they were arrested to request a hearing with the DMV. This hearing
is called an "administrative per se" hearing and if one is not requested
within the 10-day time frame, the right to a hearing is gone. Without a
hearing it is virtually certain the DMV will suspend your driver's license.

DUI: Not Always Cut and Dry

Those who have been charged with driving under the influence (DUI) may be
deceived into thinking that it's a simple cut and dry matter. They already
know about the fines, the points in their license and even the possibility
of losing their license; however, they are not aware that there are other
much larger and life impacting penalties that can be assigned with the DUI.
While an experienced DUI attorney would be able to assess the case to see
if these penalties would be included, many non-specialized lawyers are
unaware, leaving the defendant to face the dark.

Penalties for Excessive Speed

In California, a DUI isn't judged simply by impairment, rather, it's viewed
from a number of different angles. For example, should the person have been
driving on a freeway 30 miles per hour over the speed limit, they can get
an additional term of sixty days in jail. This is also applied if the
person is only going 20 miles per hour over the speed limit on a street or
a highway. These can be applied even if it is the person's first offense
and in addition to the jail time, the person will be required to complete
an alcohol / drug program even if a probation term wasn't assigned.

Penalties for Passengers

If a parent or guardian has a passenger who's younger than the age of 14,
more penalties can be assigned. If this is a first time DUI offense, the
person will get 48 additional hours in jail. Should it be the second
offense, the jail time increases to 10 days. The third offense warrants an
even longer jail time extension: thirty days in jail. Should this be the
person's fourth or more offense, 90 days of jail time will be added to the
sentence.

Refusal of a Chemical Test

Even if the person was pleasant and listened to the officer during the time
of the arrest, they can still be penalized if they refuse to take the
chemical test. If the refusal occurred during the person's first DUI
offense, they will receive an additional 48 continuous hours in jail and a
one-year driver's license suspension. The penalties become more severe if
it is the person's second time: an additional 96 continuous hours in jail
and a two-year driver license suspension. A third offense receives 10 days
in jail while a fourth offense receives 18 days in jail.

Without hiring a lawyer who specializes in DUI cases, the average person
won't have the slightest idea how severe the penalties in their cases will
be. A skilled DUI lawyer can examine the case with the client, look at all
the angles and evaluate the potential penalties, and even find ways to
reduce these penalties or eliminate them entirely. For those who think they
can brave the courtroom alone, be wary: a DUI is not as cut and dry as it
appears.

DUI's & Injuries: Not Just About Insurance

Driving under the influence can have serious consequences, especially when
another person is injured. While many people immediately think of their car
insurance rates and law suits, they fail to realize that the court also has
very heavy penalties for those who are charged with a DUI and have injured
someone. These penalties also vary depending on whether probation was
granted or if probation was not permitted. Unfortunately, many people get
so caught up in the idea of a lawsuit that they don't think to contact a
lawyer who specializes in DUI's to examine their situation for their own
protection. These people find themselves facing the following penalties:

First Offense

If probation is granted, the person can expect to get a fine from between
$390 to $1,000, along with some penalty assessments. They will also be
required to attend a three-month alcohol / drug program. They be required
to attend a nine-month program if their blood alcohol level (BAC) was .20
percent or more or if they refused a chemical test. They can also expect at
least five days in jail and a six-month driver license suspension. Should
the person not be eligible for probation, they can expect the same number
of fines, but the other penalties will be more severe. They will face 90
days to 1 year in county jail if the crime is labeled as a misdemeanor, 16
months to 2-3 years in state prison if it is labeled a felony, and one
additional one-year term for each additional injured victim and a one-year
driver's license suspension.

Second Offense

If the person commits another offense within ten years of the previous
offense, they can expect more penalties. If probation is granted, the
person will get a three year license suspension which can only be changed
by completion of an alcohol / drug program, a fine between $390 to $5,000
with penalty assessments coupled with 120 days to 1 year in jail, or a fine
of $390 to $1,000 with penalty assessments and 30 days to a year in jail as
well as required attendance at an 18 to 30 month alcohol / drug program.

If probation is not granted, the person can expect a fine of $390 to $5,000
plus any penalty assessments, 120 to 1 year of jail time in a county jail
if it is a misdemeanor, 16 months or 2-3 years in jail if it is a felony as
well as an additional one-year term for each additional injured person.
This is topped off with a three-year driver's license suspension.

The penalties continue to increase in amount and severity the more times
the crime is committed. While a person might believe they will receive
probation simply because it is their first offense, it is not always a
guarantee. This is why it is important to contact a lawyer who specializes
in DUI cases as they will be able to properly analyze all aspects of the
situation and find ways to cut back the severity of the penalties.

Wrong Place, Wrong Time: DUI's & a Suspended License

While it's universally understood that a person should not drive while
their license is suspended, revoked, or restricted, many believe they can
get away with it regardless. Even though it is violating the law, many of
these people are correct in that they are able to drive during this time
and not get caught; however, not every person is so lucky. If a person
should be arrested and charged with driving under the influence while their
license is suspended, revoked, or restricted, they can face maximum
penalties if they do not hire a specialized DUI lawyer who understands the
vehicle code and penalty structure.

Vehicle Code 14601

If the person is a first-time offender and they fall within vehicle code
14601, they can expect to receive five days to six months in jail, a $300
to $1,000 fine with penalty assessments, and an ignition interlock device
will be installed if there is a plea agreement for a charge of VC §
14601.2. Should this be their second, third or more offense within five
years of another conviction of VC §§ 14601, 14601.1, 14601.2 or 14601.5
they can face: 10 days to 1 year in jail, $500 to $2,000 in fines with
penalty assessments and they will have to install an ignition interlock
device if a plea agreement for a charge of VC § 14601.2 is reached.

Vehicle Code 14601.1

A first time offense with this vehicle code will get a person up to six
months in jail or $300 to $1,000 in fines with penalty assessments. They
may even have to install an ignition interlock device if there is a plea
agreement for a charge of VC § 14601.2. Should this be the any other time
after the first, a person can expect at least five days to one year in
jail, $500 to $2,000 in fines with penalty assessments, and they will have
to install an ignition interlock device if a plea agreement for a charge of
VC § 14601.2.

An experienced DUI lawyer will usually use a three-prong attack to
challenge a DUI.

Was it a Legal Stop?

The first prong is attacking the initial detention or stop under the 4th
Amendment. Police are trained to assume everyone driving at night is DUI.
So, law enforcement look for any reason whatsoever to light them up and
pull them over to check. Often times, the police stop someone without
enough evidence to establish reasonable cause or reasonable suspicion, the
legal requirement for a warrantless detention under the Constitution. We
call that “fishing.”

Most DUI’s start with a traffic stop

An experienced DUI lawyer will know how to challenge the stop with a motion
to suppress evidence if there was not a legally justifiable reason for the
stop. If the motion before a judge (not a jury) is granted, all the
evidence that was gathered, the officer’s observations, the results of
field sobriety tests, the driver’s statements and most importantly, the
blood or breath test results cannot be used in court. It is called “the
fruit of the poisonous tree” and that can mean a complete dismissal of the
case. That may also include statements made without Miranda rights being
given. If we can beat the DUI case before it gets to trial, that is a win!

Did the Officer Follow Proper Procedure in Your DUI Arrest?

Years ago, back in the 1970’s and early 1980’s, police around the country
used all sorts of tests to try and determine if someone was under the
influence of alcohol. Most of them had little or no basis in any scientific
research and were inaccurate to worthless. During the 1980’s, an attempt
was made to study all the various field sobriety tests to determine which
were the most accurate and useful in determining if someone was under the
influence of alcohol. The research was done by NHTSA (the National Highway
Traffic Safety Administration). The research concluded that three tests
done properly were the most reliable indicators if someone was under the
influence or not. They are the Horizontal Gaze Nystagmus Test (follow the
pen), the Walk and Turn Test (heel to toe test) and the One Leg Standing
Test (balancing test.) Together they are referred to as the Standardized
Field Sobriety Tests. (You may have heard that these tests are optional.)

The tests only have value if they are done properly, ergo the term
“Standardized.” An experienced DUI lawyer knows how the tests are supposed
to be done and in what ways police most often err in doing the tests.
Furthermore, even if the tests are done properly, a good DUI lawyer knows
how to minimize their impact on a jury. Lawyer Jon Pettis is regarded as
the best lawyer in cross examination of officers who perform these tests.

Despite having “Standardized” field sobriety tests, police still regularly
use other tests. It is important for your DUI lawyer to know how to point
this out to a jury, so they can see how unreliable the investigation and
decision to arrest you was.

SDD Challenges Blood and Breath Tests

Similarly, to field sobriety tests, there are established protocols for
blood and breath tests. One avenue to attacking the tests can be if the
breath test was not done properly by the officer or the blood was not
properly drawn or processed by the crime lab.

Breath tests can be misleading or inaccurate for a number of reasons as
they are an extrapolation of what is in your blood. They can also be thrown
off if your recently drank or simply burped.

Blood or breath tests can also only indicate what your BAC was when you
were tested, not when you were driving. If your BAC was still going up when
the police stopped you, even if you were over the legal limit when you were
tested, you could have been below it when driving.

San Diego Defenders DUI Defense Team

San Diego Defenders’ lawyers, Daniel Smith and Jon Pettis, together with
the help of certified paralegal Layla Villegas Smith work on every DUI case
together. You will see the name of Attorney Daniel Smith and Attorney Jon
Pettis on every agreement for legal services together because they “round
table” each and every case. Mr. Smith, a 3rd generation lawyer and son of a
judge who handled nearly 20 years of DUI cases in his court, has a strong
constitutional background and focuses heavily on the any client’s
constitutional rights that may have been violated by the arresting
officers. Mr. Pettis, a UCLA law school grad is meticulous in his attention
to detail and the science of DUI field sobriety testing and chemical
testing by the State’s toxicologists and any mistake in drawing the blood
test or the calibration of the breathalyzer is scrutinized by Mr. Pettis.
Ms. Layla Smith is outstanding in her organization of the exhibits,
evidence and communicating with SDD clients with most questions. Even more
important is her insight as a to how a juror will receive the evidence and
testimony that the lawyers might overlook after years of examining details
as a lawyer and not a juror. SDD clients come to the office just to say
hello, which speaks volumes about the San Diego Defenders family in the
community. Call us anytime for advice and we will always try to help.

Other Consequences

Regardless of which vehicle code a person falls under, there are other
penalties that can be added to the final list. For a first-time offense, a
person could have their vehicle impounded for up to 6 months. Any time
after the first offense can be even more costly: the vehicle may be
impounded for up to one year or declared a nuisance and ordered to be sold.

These are only a few of the vehicle codes and just some of the possible
penalties that can stem from a DUI arrest when driving with a suspended,
revoked or restricted license. A court appointed lawyer, or a general
practice lawyer will likely miss many tell-tale flags that could
potentially lessen the penalty of the offense. By hiring a skilled lawyer
who specializes in DUI's, the case will be thoroughly analyzed from all
angles and all potential penalties will be assessed and reviewed for the
client's maximum benefit.